Rajasthan High Court - Jaipur
State vs Vaman Naryan Ghiya on 15 January, 2014
Author: R. S. Chauhan
Bench: R. S. Chauhan
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT State of Rajasthan Vs. Vaman Narain Ghiya & Anr. DB CRIMINAL APPEAL NO.809/2012 AGAINST THE JUDGMENT DATED 20.11.2008 PASSED BY THE ADDITIONAL SESSIONS JUDGE (FAST TRACK) NO.1, JAIPUR CITY, JAIPUR IN SESSIONS CASE NO.76/2006(141/2003). Date of Judgment:- January 15, 2014 PRESENT HON'BLE MR. JUSTICE R. S. CHAUHAN HON'BLE MR. JUSTICE VEERENDR SINGH SIRADHANA Mr. Ajay Kumar Bajpai and Mr. Sarfaraz Haider Khan, Special Public Prosecutors for the State. Mr. Vivek R. Bajwa with Mr. Snehdeep Khyaliya, for the accused-respondent No.1, Vaman Narain Ghiya. Mr. Sajjan Raj Surana, Senior Advocate with Mr K.K. Chhawal, for the accused-respondent No.2, Banne Singh @ Pahalwan. By the Court: (Per Hon'ble R. S. Chauhan, J.)
The State of Rajasthan has challenged the judgment dated 20.11.2008 passed by the Additional Sessions Judge (Fast Track) No.1, Jaipur City, Jaipur whereby the learned Judge has acquitted the accused-respondents as under:-
Vaman Narain Ghiya (Accused Respondent No.1) 379/120B, 413/120B, 414, 414/120B and 401 IPC and for offences under Section 5/25(2) of the Antique & Art Treasure Act, 1972 (the AAT Act, for short).
Banne Singh @ Pahalwan (Accused Respondent No. 2) 379/120B, 413/120B, 414, 414/120B and 401 IPC and for offences under Sections 3/25(1) and 5/25(2) of the AAT Act.
2. According to the prosecution, in the year 2002, two FIRs, namely FIR No.128/02 and FIR No. 142/02 were registered at Police Station Vidyadhar Nagar, Jaipur City (North) for offence under Section 411 IPC. These FIRs were not registered against the accused respondents; they were against other persons. While investigating these two FIRs, the police discovered that a gang was operating in Rajasthan and Madhya Pradesh which was indulging in stealing antique sculptures and artifacts, and in exporting and selling them abroad. It was also discovered that Jaipur is the center of their nefarious activities. In order to carry out an extensive investigation with regard to these activities, Mr. Anand Srivastava, the Superintendent of Police, Jaipur City (North), constituted a team of investigators. The team kept surveillance over the alleged offenders.
3. On 6.6.2003, Ram Singh (P.W.76), the SHO, P.S. Vidyadhar Nagar, received a secret information that four persons were discussing the sale of antique statues at Ganesh Park, which fell under the jurisdiction of his police station. Immediately, a team of policemen reached the park. They found four persons sitting behind a tree. Mr. Chandra Purohit, S.I. (P.W.58) eavesdropped on their conversation. He heard them talking about buying and selling of antique statues and artifacts. The police party surrounded and searched the four persons. From their search, the police not only recovered antique statues, but also discovered photographs of antique sculptures. From the accused respondent No. 2, Banne Singh, the police recovered two photographs of antique sculptures. It seized the statues and the photographs, and a motorcycle belonging to the accused respondent No. 2. The four persons were arrested. Upon returning to the Police Station, Ram Singh (P. W. 76) registered a formal FIR, namely FIR No. 146/2003 for offences under Section 379, 411, 401 IPC, and for offences under Sections 5, 14/25(2) of the AAT Act.
4. After interrogating these four persons, the police realized that the accused respondent No. 1 was equally involved in stealing, in receiving stolen properties, and in exporting antique statues and artifacts. Therefore, on 7.6.2003 a police team raided the house of accused respondent No. 1 situated at Plot No.41, Everest Colony, Lalkothi Scheme, Jaipur. It seized a total of eighteen photographs, sixty-eight catalogs of private auction houses, namely Christie and Sotheby, and seventy-two paintings. The accused respondent No. 1 was arrested in his house. Furthermore, upon three different statements given under Section 27 of the Evidence Act by the accused respondent No. 1, the police recovered ten antique sculptures and a large consignment of antique art objects/ artifacts.
5. As far as accused respondent No. 2 is concerned, during the course of investigation, on 6.6.2003, he allegedly made a statement (Ex. P. 1110) under Section 27 of the Evidence Act to Ram Singh (P.W. 76). He told Ram Singh that he has kept twelve antique statues at his residential house in his village Rudhapura, District Karauli. In pursuance of this statement, Richhpal Singh Jhakhar (P.W. 1) took Banne Singh to his village and recovered, from his house and farm, twelve statues. These statues were recovered by Ex. P.44; the Site Plan was also drawn as Ex. P. 45. During the trial, these statues were marked as Article 442 to 453.
6. Moreover, according to the prosecution, on 10.6.2003, again accused respondent No. 2 made a statement (Ex. P.1115) under Section 27 of the Evidence Act wherein he claimed that he has hidden fifty photographs of antique statues and a statue of Lord Shiva and Parvati and another statue of Lord Ganesh in his bedroom. In pursuance of this statement, he was again taken to his village Rudhapura; fifty photographs and the statues were recovered by Recovery Memo (Ex. P. 51).
7. Furthermore, according to the prosecution, while accused respondent No. 2 was arrested in FIR No.84/89, registered at Police Station Atru, District Baran, on 14.7.2003, he made a third statement (Ex. P.1117) under Section 27 of the Evidence Act to Ram Singh (P.W. 76). He informed Ram Singh that he has hidden six antique statues, which were stolen, in his Guadi (open space outside the house) and in his farm. Since Ram Singh was busy in other investigations, he handed over Banne Singh to Rajendra Tyagi (P.W. 75). In pursuance of the said statement, the police recovered six statues by Recovery Memo (Ex. P. 94). A Site Plan (Ex. P. 95) was also drawn.
8. During the course of investigation, it was further discovered that in total twenty-five persons were involved in committing theft, receiving stolen properties, and exporting antique sculptures and artifacts. According to the Police, these twenty-five persons, including the accused respondents, belonged to a gang of thieves who habitually engaged in dealing with or receiving stolen property. Therefore, a large number of FIRs against all the persons.
9. On 3.9.2003, the police submitted a charge-sheet against nineteen persons including the present accused respondents. Subsequently on 15.5.2004, the police submitted another charge-sheet against six persons. The trials of both the charge-sheets were consolidated by the learned Judge.
10. In order to prove its case, the prosecution examined eighty-three witnesses, submitted 1189 documents, and produced 1468 articles. On the other hand, the defence produced ten witnesses, and submitted 679 documents. Since during the course of trial four people absconded, by judgment dated 20.11.2008, the learned Judge convicted eighteen persons, including the accused respondents, and acquitted three persons. Although the accused respondents were convicted for offences under Section 411 and 413 IPC, and for offences under the AAT Act, they were acquitted as mentioned above. Hence, this appeal by the State before this court.
11. Mr. Ajay Bajpai and Mr. Sarfaraj Haidar Khan have restricted their arguments to the acquittal of the accused-respondents only for offences under Section 401 and 414 IPC. They have not argued against acquittal of the accused-respondents for the other offences mentioned above. Thus, the discussion shall be confined only to the offences under Sections 401 and 414 IPC.
12. Mr. Bajpai has raised the following contentions before this court: firstly, for thirty years, prior to 6.6.2003, a gang of thieves has been indulging in stealing, in transporting, in concealing, in disposing antique sculptures at an inter-state level. During the course of investigation, it was discovered that there are two separate gangs of thieves, one called the Mathura Gang and the other called the Agardi Gang named after the village of Agardi. Members of both these gangs would steal antique sculptures from temples, fortresses, palaces and other archeological sites. They would bring them either to Jaipur, or to the village Agardi. There the sculptures would be concealed. Members of these two gangs would contact accused-respondent No.1, would show him photographs of the antique sculptures, deals would be struck, and sculptures would be bought by accused-respondent No.1. He would export these antique sculptures to private auction houses, namely Sotheby and Christie where they would be sold at high prices in the international art markets. Thus, according to the learned counsel, the accused-respondent No.1 belonged to a gang of thieves and he assisted in concealing, disposing or making away with antique statues which he knew to be stolen property. Thus, he should have been convicted for offence under Section 401 and 414 IPC.
13. Even with regard to accused-respondent No.2, there are different FIRs lodged against him, and antique statues have been recovered from his possession. Thus, he too belonged to the same gang of thieves and he, too, has assisted in disposal, concealment, or making away with the ancient sculptures. Therefore, he too is guilty of offences under Section 401 and Section 414 IPC.
14. Secondly, in order to prove these facts, mentioned above, the prosecution had examined a large number of witnesses including Janak Gurjar (P.W. 2), Ramesh Chandra (P.W. 3) and Abhay Singh (P.W. 9). These persons, who were employees of accused-respondent No.1, had clearly testified about the transportation, the concealment, the sale and the export of antique sculptures by the gang of thieves and by the accused-respondents. However, the learned trial court has ignored their testimony. Therefore, the learned Judge has ignored the evidence which was readily available on the face of the record. Hence, the judgment deserves to be interfered with.
15. On the other hand, Mr. Vivek Bajwa, the learned counsel for the accused-respondent No.1, and Mr. S.R. Surana, the learned senior counsel for the accused-respondent No.2, have raised the following counter-contentions: firstly, although the High Court has all the powers while dealing with a judgment of acquittal which it enjoys while hearing an appeal from a judgment of conviction, but there are certain limitations; such a power has to be exercised with circumspection and caution. For, with a judgment of acquittal in favour of the accused, the presumption of his/her innocence stands fortified. Even if there are two views possible of the evidence, a view favourable to the accused has to be adopted. Moreover, the High Court should not interfere with a judgment of acquittal unless there are compelling and substantial reasons for doing so, and unless there is perversity in the judgment of acquittal.
16. Secondly, the prosecution has failed to prove the four ingredients of offence under Section 401 IPC. For, none of the twenty five co-accused persons have ever been convicted for theft, or robbery. Moreover, mere pendency of FIRs would not justify an inference of habit. For FIRs are nothing, but a narration of allegations. But allegation cannot take the place of proof. Even filing of charge-sheets is nothing but filing of the conclusions drawn by the investigating agencies. Thus, even filing of series of charge-sheets would not lead to an inference of habit.
17. Thirdly, the prosecution has failed to establish the fact that the twenty five co-accused persons had formed a gang of thieves who committed theft, or robbery. Therefore, the learned Judge was justified in concluding that the twenty five co-accused persons, including the accused-respondents, do not form a gang of thieves. Hence, he was justified in acquitting the accused-respondents for offence under Section 401 IPC.
18. Fifthly, a person cannot be said to assist himself in concealing, or disposing, or making away with movable property of which he knows, or has reason to believe to be stolen property. He can only assist others in disposing, concealing or making away with such movable property. Moreover, in order to bring a case within the ambit of Section 414 IPC, the prosecution needs to prove firstly that the property in question is a stolen property, secondly the accused assisted in concealing, disposing or making away of it. Thirdly, that he did so voluntarily. Fourthly, that he knew, or had reasons to believe that it was a stolen property. However, in the present case, the prosecution has failed to prove that the property was stolen one. Therefore, the essential ingredients of the offence are missing.
19. Sixthly, since both the accused-respondents have been convicted for offence under Section 411 IPC, they cannot be convicted for offence under Section 414 IPC. For a person cannot assist himself in disposing of concealing, disposing or making away with a property.
20. Lastly, while Janak Gurjar (P.W. 2) has clearly admitted in his cross-examination that he does not know whether the statues which he had packed were stolen or not. Mohanlal Sharma (P.W. 4), Gopal Singh (P.W. 5) have also admitted in their cross-examination that whatever they had said about the accused-appellant No.1 in their examination-in-chief was totally on the basis of hearsay. Therefore, the learned Judge was justified in rejecting their testimonies against the accused-respondent No.1. Hence, both the learned counsel have supported the impugned judgment.
21. Heard the learned counsel for the parties and perused the impugned judgment.
22. The principles applicable to the power of the High Court in hearing an appeal from acquittal are well crystallized by now. The principles can be summarized as under:-
1. In an appeal against an order of acquittal, the High Court possesses all the powers, and nothing less than the powers it possesses while hearing an appeal against an order of conviction.
2. The High Court has the power to reconsider the whole issue, reappraise the evidence, and come to its own conclusion and findings in place of the findings recorded by the trial Court, if the said findings are against the weight of the evidence on record, or in other words, perverse.
3. Before reversing the findings of acquittal, the High Court has to consider each ground on which the order of acquittal was based and to record its own reasons for not accepting those grounds and not subscribing to the view expressed by the trial Court that the accused is entitled to acquittal.
4. In reversing the finding of acquittal, the High Court had to keep in view the fact that the presumption of innocence is still available in favor of the accused and the same stands fortified and strengthened by the order of acquittal passed in his favor by the trial Court.
5. If the High Court, on a fresh scrutiny and reappraisal of the evidence and other material on record, is of the opinion that there is another view which can be reasonably taken, then the view which favours the accused should be adopted.
6. The High Court has also to keep in mind that the trial court had advantage of looking at the demeanor of witnesses and observing their conduct in the Court especially in the witness-box.
7. The High Court has also to keep in mind that even at that stage, the accused was entitled to benefit of doubt. The doubt should be such as a reasonable person would honestly and conscientiously entertain as to the guilt of the accused.
8. Unless the High Court arrives at definite conclusion that the findings recorded by trial Court are perverse, it would not substitute its own view on a totally different perspective.
9. The appellate Court in considering the appeal against judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for the interference.
(Ref. to Inspector of Police, Tamil Nadu Vs. John David [2011 (5) SCC 509], State of U.P. Vs. Ram Sajivan & Ors. [2010 (1) SCC 529], Siddarth Vashistha @ Manu Sharma Vs. State (NCT of Delhi) [2010 (6) SCC 1].
23. Therefore, these principles would have to be kept in mind while appreciating the impugned judgment and the evidence.
24. Section 401 IPC is as under:-
Section 401 - Punishment for belonging to gang of thieves.
Whoever, at any time after the passing of this Act, shall belong to any wandering or other gang of persons associated for the purpose of habitually committing theft or robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine.
25. In order to establish the offence under Section 401 IPC, the prosecution has to prove four ingredients: firstly, there was a gang of persons; secondly, they are associated for the purpose of committing theft or robbery; thirdly, their purpose was to commit it habitually; fourthly, the accused has joined the same with the same intention. Thus, it is essential to prove the gang was formed for the purpose of committing theft or robbery. The word 'belong' implies something more than casual association; it involves the notion of continuity and requires the proof of a more or less intimate connection with a body of persons extending over a period of time sufficiently long to warrant the inference that the person affected had identified himself with a gang, the common purpose of which was the habitual commission of either theft or robbery.
26. In order to establish its case, the prosecution has examined five witnesses, namely Janak Gurjar (P.W. 2), Ramesh Chand (P.W. 3), Mohanlal Sharma (P.W. 4), Gopal Singh (P.W. 5) and Abhay Singh (P.W. 9). But Janak Gurjar (P.W. 2) and Ramesh Chand (P.W. 3), and Abhay Singh (P. W. 9) clearly state that they do not know whether the statues being transported or being bought and sold, are stolen property or not. Moreover, the testimonies of Mohanlal (P.W. 4) and Gopal Singh (P.W. 5) do not prove that the sculptures mentioned by the prosecution were stolen. Thus, the learned Judge was justified in concluding that although the twenty five co-accused persons may have formed a gang for dealing with stolen properties, but they did not form a gang for committing theft or robbery. Section 401 IPC deals with a gang for committing theft or robbery and does not deal with a gang which deals with stolen property.
27. In the case of Bai Chaturi & Ors. v. States (AIR 1960 Guj. 5), Their Lordships of the Honble Gujarat High Court had opined that the evidence of the prosecution that a person was associated with the gang for the purpose of committing other offences, for instance, offence of demanding or taking ransom or of being in possession of stolen property would not be sufficient to justify his conviction under Section 401 IPC. We are in agreement with the view expressed by Their Lordships of the Honble Gujarat High Court.
28. Moreover, Janak Gurjar (P.W. 2), Ramesh Chand (P.W. 3) and Abhay Singh (P.W. 9) have been shattered in their cross-examination. For, once they are confronted with their police statements, they admit that the facts narrated by them in their examination-in-chief were not told by them to the police in their statement under Section 161 Cr. P. C. Thus, their deposition, given in the examination-in-chief, suffers from omissions and exaggerations. Hence, they are unreliable witnesses. Furthermore, Mohan Lal Sharma (P.W. 4) and Gopal Singh (P.W. 5) clearly admit that whatever they had deposed against the accused-respondent No.1, has been stated only on the basis of hearsay. Therefore, their deposition against the accused-respondent No.1 cannot be relied upon. For the said evidence is inadmissible being merely hearsay evidence.
29. Interestingly, the prosecution has relied upon a large number of FIRs registered against the twenty five co-accused persons including the present accused-respondent. But, so far, not a single co-accused person has been convicted for either theft or for robbery in any of the trials.
30. A bare perusal of the impugned judgment clearly reveals that the learned Judge has meticulously examined the evidence. The learned Judge has legally concluded that there is no evidence to prove the offence under Section 401 IPC.
31. On the other hand, Section 414 IPC is as under:-
Section 414 - Assisting in concealment of stolen property Whoever voluntarily assists in concealing or disposing of or making away with property which he knows or has reason to believe to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
32. In order to make out an offence under Section 414 IPC, the prosecution is required to establish four things: firstly, the property in question is a stolen property; secondly, the accused assisted in concealing or disposing of, or making away with the said property; thirdly, he did so voluntarily; fourthly, he had reasons to believe it to be a stolen property.
33. Section 410 IPC defines the word stolen property as meaning a property whose possession is transferred by theft or by extortion, or by robbery, or a property which has been criminally misappropriated, or in respect of which criminal breach of trust has been committed. Thus, the prosecution is required to prove that the property in possession has been transferred through one of these five modes. The word conceals means doing something in a stealthy manner that is to say in a manner otherwise than an open, natural, innocent and frank manner. The expression disposing of or making away in the context in which it has been used is meant to convert the idea of getting rid of with an ulterior motive, that is to say, getting rid of the property not in an ordinary manner in the usual course of dealing, but in a sinister fashion to which a criminality can be attributed. The word making away has to be distinguished from the words taking away. While taking away does not imply the suddenness of removal of a property, the words making away do imply the sudden disappearance of the property from the place it was kept. The words making away also implies the disappearance of the property by destroying it. In this sense, it does not include concealment or disposal. Since the word assistance has been used, the section covers those who assist others in disposal of the property. It does not cover a case where a person receives and even disposes of stolen property merely on his own account [Ref. to Ram Bharosey v. State (AIR 1952 All. 481)].
34. Further, Section 414 IPC is not intended to punish those whose acts constitute a distinct offence punishable as such under Sections 411, 412 or 413 IPC. It is intended only to punish those acts of assistance which fall short of actual receipt or retention of the property, but are nevertheless distinctly calculated to thwart the detection of the crime by making away with the corpus delicti.
35. Even for proving the offence under Section 414 IPC, the prosecution had examined the five witnesses mentioned hereinabove. However, as mentioned above, Janak Gurjar (P.W. 2), Ramesh Chandra (P.W. 3) and Abhay Singh (P.W. 9) have clearly claimed in their cross-examination that they are unaware of the facts that the sculptures were stolen. Further, they have been shattered in their cross-examination. Their examination-in-chief suffers from exaggerations and omissions. Therefore, they do not further the prosecution case.
36. Even if the testimonies of these five witnesses were to be believed, the allegation against accused-respondent No.1 is that he had bought the stolen properties and had exported the same. However, by doing so, it cannot be said that he has assisted others. Moreover, since he was convicted by the learned trial court for offence under Section 411 IPC, he could not be convicted, as rightly held by the learned trial court, for offence under Section 414 IPC. For the one who receives the stolen property cannot be said to assist himself. Hence, obviously, his case would not fall within Section 414 IPC.
37. Similarly, there is no evidence to prove that accused-respondent No.2 assisted any other person. Moreover, he too was convicted for offence under Section 411 IPC. Thus, the same logic would apply to his case as applies to the case of accused respondent No. 1. Hence, the learned trial Judge was equally justified in acquitting the accused-respondent No.2 of offence under Section 414 IPC.
38. A bare perusal of the discussions made above clearly reveals that there is no perversity in the impugned judgment. Hence, there are neither any compelling, nor any substantial reasons for overturning the judgment of acquittal.
39. For the reasons stated above, this court does not find any merit in the appeal filed by the State. Therefore, the appeal is hereby, dismissed. The acquittal of the accused-respondents for offences under Sections 401 and 414 IPC is hereby, confirmed.
(V. S. SIRADHANA) J. (R. S. CHAUHAN) J. 20.